In re Motorsports Merchandise Antitrust Litigation

186 F.R.D. 344, 1999 U.S. Dist. LEXIS 6166, 1999 WL 253545
CourtDistrict Court, W.D. Virginia
DecidedMarch 31, 1999
DocketCiv.A. No. l:98-MC-0044-A
StatusPublished
Cited by12 cases

This text of 186 F.R.D. 344 (In re Motorsports Merchandise Antitrust Litigation) is published on Counsel Stack Legal Research, covering District Court, W.D. Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Motorsports Merchandise Antitrust Litigation, 186 F.R.D. 344, 1999 U.S. Dist. LEXIS 6166, 1999 WL 253545 (W.D. Va. 1999).

Opinion

MEMORANDUM OPINION

SARGENT, United States Magistrate Judge.

I. Background and Facts

This matter is before this court on cross motions filed by plaintiffs’ counsel and counsel for a nonparty corporation on which plaintiffs’ counsel has issued a subpoena duces tecum compelling the production of certain documents. The plaintiffs in this case are automobile racing fans who have sued various vendors of racing souvenirs and others in the United States District Court for the Northern District of Georgia, Atlanta Division, seeking damages based on an alleged conspiracy to fix the prices of racing souvenirs sold at National Association for Stock Car Auto Racing, (“NASCAR”), Winston Cup1 races in violation of § 1 of the Sherman Act, 15 U.S.C.A. § 1 (1997). Plaintiffs’ have brought this case as a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on behalf of themselves and all other persons in the United States who purchased souvenirs or other merchandise from licensed vendors at any NASCAR Winston Cup race between January 1, 1991, and the present. (Complaint at H 41.) According to the representations of counsel, the Georgia court is currently considering whether to certify the case as a class action, but it has not yet issued its ruling on the issue.

This matter is before this court on Plaintiffs Motion to Compel Production Of Documents From Buck Fever Racing, Inc., filed on December 21,1998, (“Motion to Compel”), seeking to compel Buck Fever Racing, Inc., (“Buck Fever”), to produce certain documents requested pursuant to a subpoena duces tecum plaintiffs counsel issued to Buck Fever. Buck Fever is a retailer of Winston Cup racing souvenirs, which it sells at locations other than Winston Cup races. This matter also is before the court on Buck Fever’s Motion To Quash Subpoena filed December 30, 1998, (“Motion to Quash”). The matter is before the undersigned pursuant to an Order entered January 11,1999, referring all discovery matters in this case to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a). A hearing was held on this matter on March 11, 1999.

The parties to this discovery dispute have filed legal memoranda in support of their positions, as well as supporting exhibits and affidavits, for the court’s consideration. From these documents and the arguments of counsel at the hearing, the court has been able to glean the following undisputed facts. Plaintiffs’ counsel issued a subpoena duces tecum to Buck Fever on September 14, 1998, seeking production of certain documents from Buck Fever by 10 a.m. on September 30,1998. The subpoena sought the following documents:

1. Documents sufficient to show the categories (i.e., hats, t-shirts, etc.) of merchandise that you sell.

2. Documents sufficient to identify each product that you sell and your suppliers of each such product.

3. Documents sufficient to show the price for each product that you sell. If a product’s price has changed during the relevant period, produce documents sufficient to show each product’s price at all times during the relevant period.

4. Documents sufficient to show the costs of goods sold for each product that you [347]*347sell. If such costs of goods sold have changed during the relevant period, produce documents sufficient to show the costs of goods sold at all times during the relevant period.

5. All internal and public monthly, quarterly, and annual financial statements, including profit and loss statements and balance sheets, during the period January 1,1991 to present.

6. All catalogs, advertisements, or other sales materials for the products you sell.

7. Documents that evidence any agreements or communications between you and any other person or entity regarding the prices that you charge for your products.

8. Documents sufficient to show any royalties or license fees that you pay for the products that you sell.

9. Documents sufficient to identify your customers.

The instructions listed on the attachment to the subpoena defined the “relevant period” as January 1,1991, to the present.

On September 25, 1998, Linda Poole, a private process server, delivered the subpoena to Buck Fever employee Vickie Blevins at Buck Fever’s retail sales store on Lee Highway in Marion, Virginia. Blevins worked as a part-time retail sales clerk at the store. Blevins was not then, nor has she ever been an officer, stockholder, director, managing agent, supervisor, manager or registered agent of Buck Fever. Blevins has never been authorized to accept service of process on behalf of Buck Fever. Blevins’ and Poole’s accounts of their conversation and actions on this date differ, but based on my ruling below, these different versions are not significant and will not be set forth here.

On September 28, 1998, plaintiffs’ counsel, John Hinton, IV, received a message from Donna Benny, an employee of Buck Fever, seeking to negotiate an extension of time for Buck Fever to comply with the subpoena. Hinton and Benny later agreed that Buck Fever could have an extension until October 30, 1998, to produce the requested documents. Around October 30, Hinton spoke with another Buck Fever employee, Denise Fuller, and agreed to allow Buck Fever an additional two or three weeks to comply with the subpoena. On November 24, 1998, Hinton called Fuller to set a final date for production of the requested documents, and Fuller directed Hinton to contact Mark Es-posito, Buck Fever’s counsel. Hinton contacted Esposito, and Esposito told him that he represented Buck Fever with regard to plaintiffs’ subpoena. Esposito told Hinton that he had just recently received a copy of the subpoena from Buck Fever. Esposito informed Hinton that Buck Fever might not comply with the subpoena, and he requested that Hinton provide him with proof of valid service on his client. Esposito stated that he was meeting with representatives of Buck Fever later that week and would call Hinton the following Monday to clarify Buck Fever’s position. Esposito later left Hinton a voice mail message that his meeting with the Buck Fever representatives had been rescheduled for December 10,1998, and he stated that he would call Hinton after that meeting. When Hinton did not hear anything further from Esposito, he tried to contact Esposito by telephone and wrote two letters with no response.

On December 21, 1998, plaintiffs’ counsel filed the Motion to Compel requesting that this court order Buck Fever to comply with the subpoena and produce the requested documents within 10 days. In the accompanying-legal memorandum in support of their motion, plaintiffs state that Buck Fever is one of several “benchmark” firms which plaintiffs served with subpoenas duces tecum. Plaintiffs assert that the information requested from these benchmark firms is required to allow its expert witnesses to ascertain whether the defendants’ alleged conspiracy impacted the plaintiffs by raising the price of NASCAR Winston Cup souvenirs sold at races.

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Bluebook (online)
186 F.R.D. 344, 1999 U.S. Dist. LEXIS 6166, 1999 WL 253545, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-motorsports-merchandise-antitrust-litigation-vawd-1999.